from the golf-clap dept

We've seen a wide range of methods businesses have devised for dealing with less than praising online reviews of their operations. Some choose to threaten libel. Others promise fines. Still others invoke a sort of holy legal wrath, with the weight of the Almighty tipping the scales of justice. Mind you, none of these methods does much to ingratiate the business to the public and often backfires completely by bringing attention to the negative reviews that otherwise would have been completely absent. A new method is clearly needed.

That's where the Atomic Grill in Morgantown, WV, comes in. They too were faced with an online review that was not only not entirely positive, but also incorporated the caveman-ish request that employees of the eatery "show more skin", because food without near-nipple just doesn't taste as good, apparently. The owner of the grill, Daniel McCawley, was understandably less than pleased.

"It was brutish. I was upset. I'm a father of a 12-year-old girl and I've got five sisters," McCawley said. "The way that women are treated is pretty personal as far as I'm concerned."

Agreed. But what to do about it? Lawsuits don't seem to work, as shown above, and anger on its own isn't all that effective. Plus, there's that probably-not-correct platitude that "the customer is always right." So McCawley decided to marry his revulsion to that concept and concede defeat to the review in the best way possible. He decided to "show more skin."

From now through Memorial Day, Atomic Grill will be offering a potato skin special for $7, and 100% of the proceeds will go directly to the West Virginia Foundation for Rape Information Services. He said the restaurant has so far received a "tremendous" amount of support. "My Facebook blew up overnight," he said. "I really hope this will be a positive thing."

So, he provided "more skin" in the form of potato skins, avoided any legal nonsense, showed himself to be an admirably level-headed business owner while still retaining a moral compass, and subsequently generated a ton of goodwill and publicity for his business. That's how it's done, overly legal business owners. A little humor mixed with social shaming does the job so much better than profit-milking lawyers.

from the urls-we-dig-up dept

Some folks want to avoid re-inventing the wheel, but sometimes there are reasons to try. Some people don't like the look of spokes or hubs in the middle of their tires. Maybe you just want to get a futuristic look or be eye-catching. Here are a few wheel designs that are a bit unusual, but they might be a bit more complicated than traditional wheel assemblies.

According the the appeal, “[Korry] Ardell has not aligned himself with the general class of persons (emphasis added)” that make records requests to ensure government transparency.

How did Korry Ardell get himself excluded from the "general class of persons?" By being generally abusive and violent, it would appear. The person whose records he was seeking had previously obtained a restraining order against Ardell -- something he had violated in the past, leading to a six-month visit to a local correctional facility.

The decision groups Ardell with others who are denied access to public records -- namely, prisoners. But Ardell's time had been served and he was no longer incarcerated when the request was made. Ardell's previous willingness to violate court orders does seem to give him a higher-than-normal chance for recidivism, something the court also took into account when rendering this decision.

Ardell disagrees with this conclusion and argues that Levin v. Board of Regents of the University of Wisconsin System, 2003 WI App 181, 266 Wis. 2d 481, 668 N.W.2d 779, stands for the proposition that identity is never a proper consideration when determining whether information should be released under the Wisconsin open records law. Citing WIS. STAT. § 19.32(3), Ardell asserts that the only exception to this hard-and-fast rule is for committed and incarcerated persons.

Indeed, Levin stands for the general proposition “that the identity and purpose of the requester of public records is not a part of the balancing test to be applied in determining whether to release records.” Id., 266 Wis. 2d 481, ¶14. However, as we set forth above, the determination of whether there is a safety concern that outweighs the presumption of disclosure is a fact-intensive inquiry that we determine on a case-by-case basis…

Ardell’s violent history with the MBSD employee, including his two convictions for violations of the domestic abuse injunction, align him more closely with the class of persons statutorily denied access to public records for safety reasons, that is, committed and incarcerated persons. See WIS. STAT. § 19.32(3). Ardell has forfeited his right to disclosure of the MBSD employee’s employment records by demonstrating an intent to hurt the employee, and it would be contrary to common sense and public policy to permit him to use the open records law to continue his course of intimidation and harassment.

While the decision does appear to make sense in this situation, it opens up the possibility of future request denials based on the requester's personal background, or the responding agency's perception of the requester's motive. ("Mosaictheory," anyone?) The court states that this will be determined on a "case-by-case basis," but that's a potentially expensive remedy that not every requester will be able to avail themselves of. This has the potential to route more requests through the Wisconsin court system, aligning this state with the US government itself, which seems to prefer legal battles to transparency.

from the because-of-course-they-didn't dept

All the way back in 2008, we wrote about an increasingly common practice among slimy DC lobbyists to "sign up" clueless organizations to be used as astroturfing figureheads. For example, it seemed odd that corn farmers were suddenly interested in internet ad rates. The original article, by Declan McCullagh, included the money quote from an anonymous person involved in those kinds of astroturfing schemes:

"You go down the Latino people, the deaf people, the farmers, and choose them.... You say, 'I can't use this one--I already used them last time...' We had their letterhead. We'd just write the letter. We'd fax it to them and tell them, 'You're in favor of this.'"

This seems to be standard practice for the big broadband companies. We highlighted how AT&T got "The Latino Coalition" to speak up in favor of their attempted (and eventually failed) merger with T-Mobile. Meanwhile, Comcast recently got the US Hispanic Chamber of Commerce to come out in favor of Comcast buying Time Warner Cable. And, of course, the dirty secret in all of this is that the way this works is the big companies toss a bunch of money at these organizations to get them to "support" whatever positions the companies want them to support. For example, the Hispanic Chamber of Commerce received $320,000 from Comcast.

We recently wrote about the latest round of astroturfing groups that the broadband players were supporting, and who were out arguing in force against net neutrality. Lee Fang, at Vice, who wrote the original report that was based on now has a followup, talking about how many of the organizations listed as "members" of the astroturf group "Broadband for America" claim they have no idea what that is and did not choose to sign up.

Bob Calvert, the host of TalkingWithHeroes.com, a radio program listed as a Broadband for American member, told us that he is not familiar with the net neutrality debate. "My program is a non-political program supporting our men and women who serve and who have served our country and their families," said Calvert, in response to an inquiry from VICE.

Another Broadband for America member, the Texas Organization of Rural & Community Hospitals, said it had joined only to support broadband access in rural and underserved areas, not on issues relating to net neutrality or the classification of broadband as a utility. "We will reexamine this endorsement and make a determination whether to continue supporting the coalition should we find that the current policies they are proposing would undermine the original goal of greater access for all Americans," said Dave Pearson, president of the group, which represents rural hospitals in Texas as the name suggests.

Some directly say they disagree with Broadband for America's position on net neutrality.

Don Hollister, the executive director of the Ohio League of Conservation Voters, said he was unaware of his organization being listed as a Broadband for America member. After our inquiry, Hollister wrote to us to share a message he sent to Broadband for America:

"The Ohio League of Conservation Voters does not endorse your position on broadband. This is not a policy area that we take positions on. Why are we listed as a Broadband for America member? I am unaware of Ohio LCV taking any position on broadband issues and I have been Executive Director since 2011. The Ohio LCV is not a member of Broadband for America. Remove us from your listing of members."

Other groups we contacted were simply confused. "I'm not aware of them and I pay all the bills. I've never heard of Broadband for America," replied Keith Jackson, an accountant with the Spread Eagle Tavern & Inn, a cozy bed and breakfast in Ohio that is listed as a Broadband for America member.

There's more in the original article. But it's pretty straightforward: many of the named members either had no idea or thought they were signing up for something very, very different. And yet now they are "supporting" policies they either don't know about or don't support. But this is how things are done in the cynical corners of Washington DC. You get support in any way necessary, no matter how ridiculous.

The Department of Veterans Affairs' in-house watchdog has demanded that the Project On Government Oversight turn over all information it has collected related to abuses and mismanagement at VA medical facilities, according to a subpoena delivered to POGO May 30.

The subpoena from the VA Office of Inspector General demands all records POGO has received from current or former VA employees, as well as any other individuals, including veterans. The subpoena asks for records related to "wait times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility."

While on one hand, the information the IG is seeking is exactly the sort of data it needs to complete its investigation, the larger issue is the subpoena's potential to undermine the confidentiality promised to whistleblowers who submitted documents through POGO's VAOversight.org website. Nearly 700 people have turned over information to POGO's secure dropbox since the site's launch in early May. POGO advised submitters to take steps to maintain their anonymity when submitting (using TOR, not submitting docs from work phones, computers or fax machines, etc.) and all submissions were sent as encrypted messages.

Now, with a simple administrative subpoena -- one that isn't even signed by a judge -- all of this protection is being removed. Anyone who failed to take preventative measures, or might be traced back via other means, can now be exposed by the IG's efforts.

The current administration talks a lot about transparency and the importance of whistleblowers in keeping the government in line, but its actions have completely contradicted its spoken assurances. This administration has prosecuted more whistleblowers than all other administrations combined. Those who may be swept up by the IG's investigation include many who tried to alert the government of the VA's problems through proper channels, but turned to a third party when their grievances went unanswered.

Our unwillingness to comply with the subpoena is consistent with our long history of protecting sources who come to our organization. POGO has consistently refused to turn over information and/or records about our sources, investigations, and practices when government agencies, Congress, and parties in civil and administrative cases made such requests, including requests made pursuant to a subpoena. POGO has always taken the position that the First Amendment protects POGO's right to protect the whistleblowers, sources, and insiders who come to us with information or assist in POGO’s investigations.

The letter further points out that there's little reason to believe that the Inspector General doesn't already have access to the sort of information its seeking.

The IG's office has provided no basis to suggest that the information possessed by POGO as a result of its investigation of the VA is not already available to the IG, including through the VA IG "hotline." Accordingly, the administrative subpoena is little more than an invasive fishing expedition.

Edward Snowden, along with many others, has said that the best tool right now to defeat the NSA and other government spying is the use of encryption. It is possible that some forms of encryption are not breakable by the NSA. It is likely that breaking other forms of encryption is slow and/or expensive to do on a world wide web-scale. It is a race of course, between how many supercomputing algorithms the NSA can throw at the problem and the cleverness of the people creating new forms of better encryption.

If the government can access documents and information with a simple piece of paper– a subpoena– then all the encryption in the world is pointless.

This is part of the government's interpretation of the Third Party Doctrine, one that has made the Fourth Amendment almost completely useless.

DOJ has turned all that around. It claims now that under the Fourth Amendment, it can subpoena an Internet company such as Facebook and demand they look for and turn over all the records they have about Mr. Anderson. DOJ isn’t searching, per se– they are demanding Facebook do that for them, so no warrant is needed. Worse yet, DOJ believes it can subpoena multiple records, maybe all the records something like Facebook has, with one piece of paper. The same thing applies, DOJ claims, to email. If they came to someone’s home and demanded access to that person’s emails, it would require a specific search warrant. Instead, if DOJ issues a subpoena to say Google, they can potentially vacuum up every Gmail message ever sent.

So, while encryption may stymie the interception of communications, it doesn't do much good when the government arrives with a piece of paper asking for the unencrypted end result of these communications, especially one that is self-issued by the Inspector General with no additional legal scrutiny. POGO encrypted submissions but the IG's subpoena asks for everything its collected in unencrypted form ("fully legible and complete copies of the records"). The assurances given to anonymous whistleblowers by POGO are as meaningless as the assurances given to users of Lavabit's encrypted email service. The government doesn't mind much if you encrypt the "middle," because it can always just ask for stuff at either end.

from the change-things-around dept

If you've been following the whole net neutrality fight for a while, the following graphic may be familiar to you -- showing what a potential "cable-ized" world the internet would become without strong protections for net neutrality:

At some point, someone created a similar version, that was specific to AT&T:

A little while ago, however, someone took the joke even further, and set up a website for a fake broadband provider, asking people to Join the Fastlane!, and it was pretty dead on in terms of what such a site might look like:

I particularly like this bit:

It's now come out that this campaign (along with some associated billboards) has been put together by BitTorrent Inc., not all that different than the company's billboard campaign against the NSA. Along with this, BitTorrent has put out a blog post explaining, in part, how we got here, but more importantly how we need to start thinking about a better way to handle internet traffic to avoid the kind of future described above.

The key issue: building a more decentralized internet:

Many smart researchers are already thinking about this problem. Broadly speaking, this re-imagined Internet is often called Content Centric Networking. The closest working example we have to a Content Centric Network today is BitTorrent. What if heavy bandwidth users, say, Netflix, for example, worked more like BitTorrent?

If they did, each stream — each piece of content — would have a unique address, and would be streamed peer-to-peer. That means that Netflix traffic would no longer be coming from one or two places that are easy to block. Instead, it would be coming from everywhere, all at once; from addresses that were not easily identified as Netflix addresses — from addresses all across the Internet.

To the ISP, they are simply zeroes and ones.

All equal.

There's obviously a lot more to this, but it's good to see more and more people realizing that one of the fundamental problems that got us here is the fact that so much of the internet has become centralized -- and, as such, can be easily targeted for discrimination. Making the internet much more decentralized is a big step in making it so that discrimination and breaking net neutrality aren't even on the table.

from the because-book-scanning-is-fair-use dept

The Authors Guild simply won't give up on its quixotic attack on modern technology. Even after losing both of its book scanning cases -- one against the Hathitrust (a collection of university libraries) and the other against Google -- it appealed both rulings. This morning, the ruling in the first of those cases, the Hathitrust one, came out, and it pretty much demolished the Authors Guild's arguments, finding, yet again, that book scanning like this is clearly fair use, though for slightly different reasons than the lower court. But there is plenty of useful stuff in the ruling. First, the court explored whether having a full-text searchable database of all text is fair use and found overwhelming support for that idea:

Turning to the first factor, we conclude that the creation of a full-text searchable database is a quintessentially transformative use. ... [T]he result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.

There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede[] the objects [or purposes] of the original creation,” ... The HDL does not “merely repackage[] or republish[] the original[s],” ... or merely recast “an original work into a new mode of presentation,”
.... Instead, by enabling full‐text search, the HDL adds to the original something new with a different purpose and a different character.

In other words, copying all the words in books to create that searchable database is transformative fair use. In fact, the court notes that it "adds a great deal more to the copyrighted works at issue than" other transformative uses that the same court has approved. As for the fact that it copies "all" of the work, and how that impacts the "amount of work" used as a fair use test, the court, thankfully, focuses on the word necessary in exploring if "more of the copyrighted work than necessary" was used -- finding that "for some purposes, it may be necessary to copy the entire copyrighted work" and thus that does not weigh against the third factor in the fair use test.

Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function, we do not believe the copying was excessive.

The Authors Guild, somewhat ridiculously, argued that because the full copies are kept on multiple servers, it meant that Hathitrust had "more copies than necessary," but the court brushes that aside by pointing out the value of backups and load-balancing between multiple servers.

But the really big issue comes down to the impact on the market, the fourth factor in the fair use test, and the one that is generally considered to be the most important. The court here makes an important distinction that many people completely miss when analyzing the "impact on the market" question -- which is that the only impact that matters is the impact because the copy serves as a substitute for the original. There are lots of other ways the copy might impact that market that do not matter in this analysis.

To illustrate why this is so, consider how copyright law treats book reviews. Book reviews often contain quotations of copyrighted
material to illustrate the reviewer's points and substantiate his
criticisms; this is a paradigmatic fair use. And a negative book
review can cause a degree of economic injury to the author by
dissuading readers from purchasing copies of her book, even when
the review does not serve as a substitute for the original. But,
obviously, in that case, the author has no cause for complaint under
Factor Four: The only market harms that count are the ones that are
caused because the secondary use serves as a substitute for the
original, not when the secondary use is transformative (as in
quotations in a book review).

The Authors Guild tried to get around this by using a popular tactic in copyright/fair use cases: claiming that the use might preclude a future licensing opportunity for the work. Thankfully, the court flat out disagrees with this assertion:

This theory of market harm does not work under Factor Four, because the full‐text search function does not serve as a substitute
for the books that are being searched... Thus, it is irrelevant that the
Libraries might be willing to purchase licenses in orderto engage in this transformative use (if the use were deemed unfair). Lost
licensing revenue counts under Factor Four only when the use
serves as a substitute for the original and the full‐text‐search use
does not.

The Authors Guild also tested out a more laughable, and less popular theory, that because someone might hack into the database and free the works, it represents a harm on the market. The court is... not impressed, noting (1) that the libraries have taken precautions against this and (2) the risk is "hypothetical" and "conjectural" calling back to the MPAA's claims of "harm" from the VCR, where the Supreme Court rejected as being merely "speculative." In other words, you have to show a real likelihood of harm and not just some fantasy land conjectures.

The court also looks at two other users of the work. First, there's the question of providing digital access to "print-disabled audiences" (e.g., the blind, who may have trouble with ordinary books). It's somewhat ridiculous that the Authors Guild seems to actively fight against making works available in other ways to those it doesn't properly serve, but that's the Authors Guild these days. Once again the court notes that this is a clear fair use. Finally, on the question of "preservation" of the works, the court punts, saying it's unclear if that's really an issue with any of the works involved in this lawsuit. Thus, it's not clear if the Authors Guild even has standing to argue that the preservation of works is copyright infringement. So it sends the argument back down to the district court on that issue.

All in all, yet another good win for fair use -- though, given the Authors Guild's previous actions, it is likely they will appeal this ruling as well. Because that's what the Authors Guild does.

from the because-that's-how-patents-work dept

While the details aren't entirely clear yet, there are reports that the company is likely to "open up" or "give away" some of its patents on its Supercharger system in an effort to create a standard that other electric car makers can use. Elon Musk has been hinting at doing something "fairly controversial" with the company's patents for a little while now. The really tragic thing is that this should not be controversial. Anyone who's studied the history of innovation knows how badly patents get in the way of standardization. There often is long and involved fights over how patents fit into standards, with debates about fees and "RAND" pricing. Fights break out over whose patents get included, and then giant bureaucracies spring up around who gets to manage various patent pools, and how money gets distributed. And all of it slows down the actual innovation process.

And this is a problem.

Hopefully, the rumors are accurate, and Tesla really is freeing up its patents, because Musk has always been a more visionary sort. He must realize that the business is selling the cars, and any advance that makes the cars themselves more useful makes them more valuable, and widespread infrastructure that helps his cars and which he doesn't have to pay for is only a good thing in the long run. For too long, the "typical" business wisdom from those who are too focused on permission-driven innovation is that you have to lock up everything. But toll booths create friction and slow down the opportunities for real innovation. It would be great to see Musk do "something controversial" like this, even if it's ridiculously depressing that this idea is considered even remotely controversial.

Monetizing each step of the process, even if it limits the overall market is what should be seen as controversial -- rather than sharing knowledge and encouraging others to build upon a shared standard that increases opportunities for the entire market.

from the violating-both-due-process-and-the-realm-of-possibility dept

Back in April, a Texas district court judge (well, a "visiting judge") ordered Google to do the following:

The gag order, signed by visiting San Antonio Judge Richard Price in February 2013, forces Google and other search engines to wipe out all record of the allegations from the Internet. It also compels the search engine to find third parties who posted the information to get it back and destroy it.

This was to be done on behalf of Calvin C. Jackson, an attorney who was accused of forging signatures on court records. It's unknown whether the judge actually read what he was signing or if he did, whether he recognized how completely ridiculous the request was. Google may index the web and hold a commanding lead in the search engine market, but it certainly doesn't have the ability to demand third parties turn over and/or destroy content.

That the whole thing took place under seal and out of the public eye made it even more ridiculous. The court order demanding the impossible was also placed under seal, presumably to protect Jackson from being further linked to the allegations he was trying to bury. We can all see how well that worked out.

The order identified Google as an entity to whom the order must be sent. The order further required all identified recipients to expunge or destroy all records relating to the action other than certain, specifically identified records….

Constitutional due process requires a party to be served with process and to receive notice of an action to which it is an interested party. A judgment rendered in violation of due process is void…

It is clear from the record that Google was never named as a party to the suit, was never served with process, never waived or accepted process, and never made an appearance in the suit before the expunction order was entered. Nothing in the record establishes that Google stands in privity to the commission or to Jackson. Accordingly, we hold that Google was not a party to the suit and that the trial court lacked jurisdiction to enter orders against Google.

As Eugene Volokh notes, this seems obvious enough. But it wasn't obvious to the lower court which ordered Google to go door-to-door around the internet with a paper shredder in tow.

Beyond the normal First Amendment ramifications, there's also the fact that Jackson was effectively asking the court (and Google by extension) to destroy public records. The allegations against Jackson weren't simply blog posts or newspaper articles. These allegations were part of a lawsuit brought against the attorney (the same lawsuit that didn't include Google). Public records can be expunged, but that's limited to what the court itself directly controls. Anything already posted to the internet is out of its reach. Calvin Jackson's quest for an allegation-free existence is futile, and every additional legal effort seems to place it just that much further out of reach.

from the what-competition? dept

Back in April, we noted that in a filing with the FCC, Comcast insisted that it had been voted one of the world's "most admired companies" as it sought to hit back at the idea that it was where innovation went to die (and that would get worse if it was allowed to merge with Time Warner). Of course, we pointed out that Comcast did what Comcast did best and was being quite misleading about it. The Fortune list of "most admired companies" does include Comcast... but only in the "cable and satellite providers" category, which only has four companies. And, more importantly, Comcast couldn't crack the top 50 in the full list of the companies that are actually the most admired.

And, of course, Comcast recently won Consumerist's World's Worst Company award. And, just a few weeks ago, the famed American Customer Satisfaction Index announced that Comcast and Time Warner Cable have the two lowest customer satisfaction ratings of any ISP in the US -- and had scores so low that they were basically the most hated companies in America across any industry. Yes, people hate Comcast and Time Warner more than, say, banks, insurance companies or airlines.

And, just to pile on, a new survey has found that more than half of all cable subscribers would leave their current provider if they felt there was a legitimate alternative out there -- though 70% felt that they had no real competition to go to. 72% noted that as these companies became larger, they made things worse, not better, for consumers. And, 73% felt that cable companies were "predatory" in their practices in taking advantage of consumers. Not surprisingly, the report found that Comcast and Time Warner Cable customers were the most likely to be interested in cutting the cord and ditching their cable service altogether.

So, uh, yeah: for all of Comcast insisting how great its merger will be with Time Warner Cable, if allowed, it would appear that pretty much everyone else recognizes that these are two giant companies who have specialized in abusing their market power to not just limit competition, but to then offer consumers terrible, terrible service.

from the where-does-hillary-stand-on-parody? dept

Not this again. We've noted many times in the past that the two popular "print on demand" t-shirt/merchandise operations online, CafePress and Zazzle, too frequently seem to quickly take down content based on bogus legal threats. Last year, after Zazzle caved in to threats from Homeland Security and the NSA over parody logos, a lawsuit was filed by Dan McCall, whose designs were taken down. The geniuses in the US government realized they were in trouble and admitted that there is no violation in parody logos.

You would think, therefore, that when these sites received demands to take down more designs posted by McCall, they'd think twice. But no such luck. Both Zazzle and CafePress took down the following design that McCall had posted:

Even more ridiculously, at first neither site would tell him why or even who complained (Zazzle eventually did, but refused to say what the legal reasoning was, citing non-existent "confidentiality"). But it wasn't too difficult to guess.

That's the design for Ready For Hillary, a political action committee (PAC) that is obviously working on the pre-campaign for Hillary Clinton's all-but-certain run for the President in 2016. Following a request for more information, both CafePress and Zazzle appeared to take a rather generic form-letter approach to the situation.

Thankfully, Paul Alan Levy from Public Citizen (again, who has represented us in the past as well) has sent one of his masterful demand letters to Ready For Hillary explaining to the PAC why this situation is ridiculous, why it has no legitimate claim for a takedown, and giving the PAC three days to retract the takedowns or face a legal action for declaratory judgment of non-infringement -- including seeking damages for lost sales and attorneys fees for frivolous takedowns.

The communications from Zazzle and CafePress do not reveal whether your client's claims
are based on copyright or trademark; Ready for Hillary could have threatened these companies with
either to take advantage of the fact that, although 47 U.S.C. § 230 generally gives providers of
interactive web sites statutory immunity for content provided by another, the immunity does not
apply to intellectual property claims. However, the difference does not matter, because in either case
McCall's use is plainly parody. McCall uses the "I'm Ready for" words and design derisively,
replacing the word "Hillary" with the word "oligarchy." This is a reference, in part, to the recent
discussion of the increasing tendency of American politics to reflect rule by oligarchy, rather than
by true democracy, as reflected in a recent paper by Martin Gilens and Benjamin Page, Testing
Theories of American Politics: Elites, Interest Groups, and Average Citizens. The parody refers
more specifically to the prospect that the 2016 presidential election may be a contest between a
member of the Clinton family and a member of the Bush family. Nobody could possibly look at
McCall's design and think that it is sponsored by your committee or, indeed, by its candidate, so
there is no actionable likelihood of confusion. Moreover, even assuming that you had a registered
copyright in the Ready for Hillary design, McCall's product represents non-commercial commentary
on the copyright holder and cannot possibly interfere with sale of the copyrighted work.

Moreover, critical speech directed at a candidate for president is squarely protected by the
First Amendment, hence any application of trademark law to quash such uses is highly suspect.
Although McCall's products are sold, their contents are noncommercial speech, which qualifies for
full First Amendment protection....

The staff of Ready for Hillary should know better than to send frivolous takedown demands
like these. We would, however, prefer to resolve this controversy without litigation. We are,
therefore, giving Ready for Hillary three days to retract its takedown demand. Absent a retraction,
we will file an action for a declaratory judgment of non-infringement, seeking damages for lost sales
and an award of attorney fees for the issuance of a frivolous takedowns.

Levy, in the blog post linked above, also has harsh words for Zazzle and CafePress for caving to the takedown demand:

Although Ready for Hillary bears the main responsibility for the takedown, the spineless response from Zazzle and CafePress is disappointing – both companies removed the design without any apparent consideration for the rights of its customers to comment on prominent political figures through parody. When McCall asked for an explanation, both companies responded with generalities (here are the emails from Zazzle and CafePress). The companies' unwillingness to provide copies of Ready for Hillary’s actual takedown demands prevented McCall from focusing his arguments on the PAC’s actual claims. CafePress simply ignored a request for a copy; Zazzle outright refused on the ground that takedown communications are “confidential” (because caving in to frivolous takedowns is so embarrassing?).

In past years, we have found CafePress to be tougher in its responses to foolish trademark claims, refusing to remove designs and going so far as to bring its own declaratory judgment action against the Republican National Committee when it persisted in claiming that designs using its elephant logo to comment for or against various candidates in the primary, and for or against the Republican Party itself, violated its trademark rights. That both companies have been so supine in their responses to takedown demands as we begin the 2016 presidential election season is a discouraging sign for the vitality of free debate about the major candidates.

from the oh,-and-also-this-was-some-sort-of-hate-crime,-apparently dept

When someone accuses someone else of "stealing their ideas" in a legal filing, there's a good chance the lawsuit is doomed to fail. Ideas aren't protected. Expressions of those ideas are, but only as long as there's something significantly original about the expression(s) in question. Simply declaring that someone "stole" something isn't going to cut it.

In a dismissal that runs longer than the complaint preceding it, a New York district court breaks it all down for the pro se complainant. Here are the original allegations.

In January 2014, L'Poni Baldwin published a book called The Society on Da Run: Dragons and Cicadas. This book infringes on my book Dragons: Lexicon Triumvirate, which was published in 2005.

Ms. Baldwin's book involves "Space Dragons", which are identical to the space dragons in Dragons: Lexicon Triumvirate. Ms. Baldwin also used a "Dragon God," which is identical to the dragon god Dennagon in my book Dragons: Lexicon Triumvirate.

Ms. Baldwin also combines futuristic technology and dragons in her book, which is a copy of the fact that I used futuristic technology and dragons in my book. She also includes a dragon city and spaceships, which were also in my writing.

Furthermore, she has another book called Tarnished: Tales of Broken Dragons and 300 Other Stories. This book involves aliens fighting dragons, which is identical to the concept of one of my comic books, Dragons Vs. Aliens.

In addition, she has another book called Dragonworld ETC, which is a ripoff of a term I used in Dragons. Dragonworld in my writing referred to the dragons' homeworld.

In her saga, she also makes use of "cybernetic dragons", which was a creature in my book (except in Dragons: Lexicon Triumvirate, they were called Technodragons). She also has the dragons using weapons, which is a ripoff of my world where the dragons use swords and guns.

All this leads up to perhaps one of the most unlikely allegations to ever grace a copyright infringement complaint.

As my book came out in 2005, it is my belief that she stole my writing. Research indicates that she is black. As I am a well-known Asian Supremacist, I believe she may have done this as an act of retaliation.

This bit of race-baiting paranoia is referenced in a footnote by Judge Vitaliano but the bulk of the dismissal is a reminder that ideas -- especially those that are "significantly common" -- simply aren't copyrightable. Not only that, but even given the amount of leeway granted pro se complainants, one of the key ingredients to a successful lawsuit is actually stating an actionable claim.

It is clear that Eng, as told by him in his complaint, has seized hold of similarities between his ideas, as expressed in "Dragons: Lexicon Triumvirate," and Baldwin's, as expressed in her own works. Far from being "original" in a legal sense, the ideas which Eng purports to own are similarly common in the corpus of American science fiction and fantasy. Moreover, plaintiff entirely fails to identify how Baldwin's expressions are in any way substantially similar to his own, and even the most cursory comparison of the works in question can make clear that the authors express their common ideas quite differently.

For instance, Eng alleges that the "dragon gods" in Baldwin's stories are "identical" to what the character Dennagon becomes in his own novel. But, where Eng's supreme dragon realized singular, limitless power through contact with the titular Lexicon artifact, and made himself one with eternity itself, the "dragon gods" of Baldwin's writings are many, less-than-omnipotent, and preoccupied with mundane concerns.

Kudos to the judge for being willing to wade into roughly comparable texts dealing with dragons, techno-dragons, gun-wielding dragons and dragon gods in order to make this point. Eng was asking for a mere $10 million for this imagined violation and the judge hasn't entirely closed the door on this particular case. Eng will be allowed to re-plead, even though it seems clear that doing so will probably be a waste of everyone's time (except possibly Eng's, who very obviously needs some sort of constructive hobby).

For the foregoing reasons, Eng has failed to state a claim of copyright infringement upon which relief may be granted. These claims must be dismissed, but without prejudice and with leave to amend, should Eng be able in good faith to identify any protected expression in his work-rather than unprotectable ideas or concepts that defendant has allegedly infringed.

In the meantime, Eng is pursuing another infringement lawsuit against "Fox Group Legal" and variety of linked names for supposedly stealing his script entitled "The Theory of Everything." According to Eng, he submitted (presumably unsolicited) his script to production company Circle of Confusion in 2009 and now notes this company (which has produced a lot of Walking Dead episodes) is apparently utilizing a bunch of Eng's script elements in its produced work. (I'm extrapolating a lot here. The filing's wording leaves a lot to be desired.)

Eng is seeking $5 million "from all parties," of which there are four or five, depending on which page of the filing you read. This could mean Eng expects a $20-25 million payoff, or something more in the range of $1 million per defendant. Again, Eng's wording is less than precise but as written, it tends to indicate the latter. Oddly, unlike most copyright lawsuits, Eng expressly designates that he would prefer no jury trial.

Even terrible people can have their copyright infringed, but even the best people can't claim that general/universal ideas are somehow solely their property and that anyone else who thinks it would be cool if a dragon carried a gun/lived in the future "stole" their work. Eng shouldn't have his lawsuits disregarded simply because he's unpleasant. But measuring them solely on their merits isn't likely to raise anyone's estimation of him.

from the pleading-the-First dept

Pennsylvania is looking to become the 30th state in the US to have an anti-SLAPP law on the books. Bogus defamation lawsuits and legal threats have long been used as blunt force weapons to silence critics and unflattering media coverage. It's only in recent years that legislators have recognized the damage being done.

[Angelique] Smith, 40, a mother from Delaware County enrolled at the University of Pennsylvania, gave some of the most personal and passionate testimony at the hearing.

"My daughter, my husband, and myself have been held hostage for five long and arduous years by an injustice of the worst kind," she called out, according to transcripts and onlookers. The suit, which seeks a total of $300,000 from her and her husband, has been delayed numerous times, she said.

She and her husband have spent $5,000 fighting the suit and have defaulted on their home mortgage along the way.

Smith was sued in January of 2009 by Dorothy June Brown, a partner in a company (The Cynwyd Group) that allegedly defrauded three charter schools out of millions of dollars ($5 million from the Agora Cyber Charter School alone -- the school Smith's daughter was attending), charging for "management services" that apparently were never performed. Brown was also a founding partner of the Agora school, which created a conflict of interest that drew the attention of the state's charter school oversight as well as the state itself, both of which sued the school. (Both lawsuits were settled out of court.) Not coincidentally, the parents (including Smith) raised the same allegations in 2008, drawing the attention of Brown, who sued six parents in total.

Brown sued Stefany and five other Agora parents who had raised questions about the school's finances and its relationship with Cynwyd. Brown's firm owned Agora's building in Devon and collected management fees from the school.

The slander suit Brown filed in Montgomery County alleges the parents had made comments "that give the clear but false impression that Dr. Brown is corrupt, incompetent, and possibly criminal."

Brown's slander lawsuits were clearly filed in hopes of silencing detractors, seeing as they were filed just as Brown's school (and company) were being investigated by both state and federal agencies. Whether or not the charges against Brown stick, the parents obviously had genuine concerns about the school's co-founder. "Corrupt, incompetent and possibly criminal" seem to describe the activity federal investigators uncovered. The only thing that remains is for a jury to decide whether the "possibly criminal" acts are genuinely criminal. But while that drags on, Smith and five other parents are living their lives in the shadow of looming legal action -- something a strong anti-SLAPP law would likely have neutralized months or years earlier.

from the always-a-shame-when-the-'wrong'-evidence-surfaces dept

A Chicago woman is suing the city, along with ten police officers, for the abuse she was subjected to during a raid of the massage parlor she worked at. The entire interaction (which lasted more than 40 minutes) was caught on tape by the business' camera system.

Here's the beginning of the raid, which shows Chicago's finest interacting with Jianqing Klyzek using a combination of physical force and verbal abuse.

Here's the charming stuff Officer Di Pasquale had to say to Klyzek during their brief conversation.

Defendant DI PASQUALE: You're not fucking American! I'll put you in a UPS box and send you back to wherever the fuck you came from!

Plaintiff: I'm a citizen, OK?

Defendant DI PASQUALE: No you're not! No, you're not a citizen! No, you're not! No, you're not! You're here on our borrowed time. So mind your fucking business before I shut this whole fucking place down. And I'll take this place and then whoever owns it will fucking kill you because they don't care about you, OK? I'll take this building. You'll be dead and your family will be dead.

Also note -- especially those of you who claim bad cops are anomalies and not representative of the entire force -- that not a single officer (the plain-clothed men lined up against the counter impassively watching a small Asian woman being berated and manhandled by two "uniformed" cops) tried to dial back the aggression or suggested that some of things being said weren't appropriate or helpful. If anyone wants to know why there are so many bad cops, this is part of the problem -- the tacit approval offered by better cops who let this sort of thing happen without intervening.

Not only did these cops not try to defuse a situation that had gotten ridiculously out of hand, but they also assisted Di Pasquale and Messina in their search for the recording device in order to remove the evidence of their misconduct. Unfortunately for them, the device stored recordings off site. (Apparently, this fruitless search made up a large part of the 40-minute "raid.")

Since the officers couldn't find any evidence of prostitution (or human-sized shipping boxes), they fell back on weak claims that Klyzek assaulted an officer by "biting and scratching" as they attempted to restrain her. That failed as well when the judge threw the case out at a preliminary hearing.

But these officers weren't done failing. From the lawsuit:

On information and belief, sometime after the preliminary hearing, one or more of Defendant OFFICERS, contacted an Assistant State's Attorney in order to pursue a Grand Jury indictment for the offense of Aggravated Battery of a Police Officer against Plaintiff.

Based on Officer Sako's (allegedly) false testimony, the grand jury indicted Klyzek for aggravated battery. This was swiftly reversed when her lawyer brought some actual evidence to the grand jury.

On January 13, 2014, after viewing the video recording of Plaintiff's arrest, the State's Attorney's Office dismissed the aggravated battery of a police officer charges against Plaintiff.

Months later, the Chicago PD has yet to arrive at the same conclusion, despite being in possession of the same recorded evidence.

Police spokesman Adam Collins released a statement saying the matter is being investigated by the Independent Police Review Authority and that "the alleged comments, if true, are reprehensible and completely intolerable in our police department."

"If true." So, an officer's word is good enough to secure a grand jury indictment, but a recording -- containing both audio and video -- clearly depicting the chain of events detailed in the lawsuit -- is still up for discussion. If the IPRA ever gets around to using its eyes and ears, maybe it will finally be able to unload Officers Messina and Di Pasquale, something it should have done a half-decade ago.

A separate federal lawsuit alleged that DiPasquale and Messina were among a group of vice squad officers accused of abusing an immigrant during a 2008 prostitution sting. In the 2009 suit, DiPasquale was accused of sticking a gun in one man's face and slamming him into the dashboard of his car, breaking his nose.

The man's attorney, Richard Dvorak, said Monday that the case was settled out of court for less than $100,000.

There's the other reason bad cops are prevalent. The legal system pays victims minimal amounts using taxpayers' money. And those costing the city money simply man a desk or get a few weeks off from work before being given back their badges, guns and, most importantly, power.